In her draft recommendation adopted on March 26 2015, the EU Ombudsperson found that "the Commission’s failure to carry out a specific human rights impact assessment, in relation to Vietnam, constitutes maladministration.” She recommended that "the Commission should now carry out such an assessment without further delay."

The EU Ombudsperson assessed a complaint filed by FIDH and VCHR following the European Commission’s refusal to take human rights into account in negotiations for trade and investment agreements with Vietnam. She concluded that the complaint was well-founded.

In the documents they submitted for evaluation, FIDH and VCHR recalled that EU policies require that a Human Rights Impact Assessment (HRIA) be conducted before a Free Trade Agreement can be signed. The European Commission has refused to conduct the obligatory HRIA with regards to Vietnam on the basis that a partial assessment was made in 2009.

The Ombudsperson responded that a partial assessment that covers only certain aspects of the impact on social rights cannot be considered as a proper substitute for a HRIA. Also, the Ombudsperson noted the persistent silence of the European Commission on the lack of HRIA for the investment component of the negotiated agreement and its Investor-state Dispute Settlement mechanism (ISDS). She rejected the Commission’s argument that, given the advanced state of the negotiation process, carrying out a HRIA would have "unjustifiably burdensome and disproportionate" effects. Noting that "respect for human rights cannot be made subject to considerations of mere convenience," the EU Ombudsperson stated that "as the complainants correctly pointed out, what is decisive is […] to ensure that the FTA with Vietnam, which is still being negotiated, will have no negative impact on human rights."

In her decision, the Ombudsperson concluded that the "EU institutions and bodies must always consider the compliance of their actions with fundamental rights and the possible impact of their actions on fundamental rights" and that the EU should "not only ensure that the envisaged agreements comply with existing human rights obligations and do not lower the existing standards of human rights protection, but it should also aim at furthering the cause of human rights in the partner countries." In that vein, the Human Rights Impact Assessment (HRIA) should allow the Commission to asses if the "FTA complies with existing human rights obligations and standards and will have no adverse effects on human rights" and to define the "appropriate measures which would ensure that no such adverse effects would occur."

"This recommendation creates an important precedent regarding several issues," said Karim Lahidji, FIDH President. "Beyond the case of EU-Vietnam negotiations, it challenges the lack of HRIA on ISDS (Investor-state Dispute Settlement) and investment agreements or components of trade agreements currently being negotiated, like with Burma, China, Jordan, and the US. It insists on the need to conduct proper HRIA and cease the practice of only assessing certain social aspects. It recognizes that HRIA should lead to concrete and efficient measures to ensure that the EU respects human rights, does not lower the existing standards of human rights protection, and ensures that trade and investment agreements will not adversely affect human rights. It rejects the Commission’s well-known argument that the human rights clause and human rights dialogue can be seen as sufficient measures on their own," he added.

Vo Van Ai, President of the Vietnam Committee on Human Rights (VCHR) declared: “The EU Ombudsman’s recommendation is an important step forward for human rights in Vietnam. Without this crucial human rights impact assessment, the EU-Vietnam Free Trade Agreement would enable Vietnam to reap significant commercial advantages from the EU whilst suppressing its citizens’ and workers’ rights with impunity.”

Negotiations on the EU-Vietnam Free Trade Agreement are taking place against a backdrop of intensifying repression in Vietnam. In a fierce crackdown on freedom of expression, Vietnam prosecuted and imprisoned at least 65 bloggers and activists in 2013. At least 16 more were arrested or sentenced in 2014. Scores of civil society activists were brutally beaten for staging peaceful demonstrations, and hundreds of dispossessed farmers were wounded in massive protests over forced eviction and land confiscation.

Background - Human rights and trade

International trade and investments can have both positive and negative impacts on human rights. Past experience has shown that, in the current state of affairs, international trade and investment rules have tended to undermine the protection and realisation of human rights. This is particularly the case in developing countries with regard to access to medicine, access to water, rights of indigenous peoples, rights to an adequate standard of living, adequate housing, food, health and education, participation, labour rights and the right to work, peaceful gathering, etc.

FIDH and the VCHR have consistently called for human rights to be fully integrated in the trade and investment agreement’s framework. Conducting human rights impact assessments (HRIA) would enable the EU to prevent negative human rights impacts. This recommendation is endorsed by multiple stakeholders, including several UN Special Procedure reports, studies and analyses.

Since the Lisbon Treaty, the EU has a legal obligation to ensure that the trade agreements it implements are not harmful to human rights abroad. The EU is gradually progressing in its use of HRIAs, and has included them in its recent negotiations on free-trade agreements with Armenia, Tunisia and Morocco. However, the EU has not been consistent in their inclusion in all trade and investments negotiations. Finally, when HRIAs have been done, they have not been realized in a way that ensures the EU comply with its obligations.

While FIDH and the VCHR has repeatedly called for the inclusion of a HRIA of the trade agreement currently being negotiated with Vietnam, the European Commission has consistently refused. The two organizations’ last resort was to seek the intervention of Ms. Emily O’Reilly, the EU Omudsperson in hopes of modifying the Commission’s practice.

The European Commission has until June 30, 2015 to take a position and explain how it intends to implement the Ombudsperson’s recommendations.

The opinion of the Ombudsperson could have a significant impact on the use of human rights impact assesments beyond the negotiations with Vietnam, and be echoed in the ongoing negotiations with the USA, China, Burma or Jordan for example.